2010 (9) TMI 281 - HC - Customs

Drawback Re-export Non-receipt of sale proceeds - distinction between Section 74 and Section 75 of the Customs Act - Section 74 of the Customs Act comes into operation when articles are imported, and thereafter re-exported, such articles being easily identifiable whereas Section 75 comes into operation when imported materials are used in the manufacture of goods which are exported - applicability to the provisions of Sec. 74 and re-exported of imported goods cannot be invoked to deny drawback u/s 74 for reasons of non-receipt or part-receipt of sale proceeds - Petition is dismissed

Summary

Issues:
Challenge to order under Article 226 of the Constitution of India regarding duty drawback refund under Customs Act, 1962.

Analysis:
The petition challenged an order under Article 226 of the Constitution of India related to a duty drawback refund under the Customs Act, 1962. The order in question was passed by the Joint Secretary to the Government of India on an application filed under Section 129DD of the Customs Act. This order set aside a previous order by the Assistant Commissioner of Customs directing the respondents to refund the duty drawback under Section 75 of the Customs Act. The court noted that the goods in question were imported and subsequently re-exported under Section 74 of the Customs Act, making them subject to the rules framed under that section. The court emphasized that the provisions of Section 75 and the Customs and Central Excise Duties Drawback Rules, 1995 were independent and governed a separate scheme of drawback. It was highlighted that the Customs and Central Excise Drawback Rules, 1995 could not be invoked to deny drawback under Section 74 due to non-receipt or part-receipt of sale proceeds, as there was no enabling stipulation for this under Section 74 or its rules.

The petitioner contended that the Joint Secretary was not justified in setting aside the order based on the provisions of Section 75 or Rule 16(a) of the Customs and Excise Act. The petitioner argued that there was no basis to deny the drawback under Section 74 due to the absence of any enabling stipulation under that section or its rules. On the other hand, the respondent's counsel argued that there was a distinction between Section 74 and Section 75 of the Customs Act. They explained that Section 74 applied to imported articles subsequently re-exported, while Section 75 applied when imported materials were used in manufacturing goods that were exported. The respondent's counsel relied on a judgment of the Delhi High Court to support their argument.

After hearing both parties and examining the issue, the court agreed with the respondent's submissions and the view taken by the Delhi High Court in a relevant case. Consequently, the court dismissed the petition, discharged the rule, and made no order as to costs.